Atlantic Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GmbH of Bremen

• Jurisdiction: South Africa
• Judge: Van Heerder J
• Judgment Date: 14 August 1986
• Citation: 1986 (4) SA 865 (C)
• Court: Cape Provincial Division

Van Heerden J:

It is either common cause or not disputed that the defendant, in terms of an oral agreement concluded on 28 October 1983, undertook for a lump sum of DM 17 600 to tow the I unmanned vessel St Padarn, the property of plaintiff, with its tug the Luneplate from Ijmuiden to Bremerhaven upon the terms and conditions contained in the Unterweser towage agreement, lump sum, 1976 edition, and to deliver it at the latter port. The tug, the Luneplate, duly took the unmanned St Padarn in tow at Ijmuiden on 30 October 1983, but on 31 October 1983 the towline parted as well as the emergency line which was brought J into

Van Heerden J

A use and, as a re-connection could not be effected, the vessel ran aground on the island of Juist and was not delivered to Bremerhaven.

Plaintiff has instituted a claim for damages, the quantum of which has by agreement been fixed at R500 000 against defendant, alleging breach of contract for failure to deliver B the said vessel at Bremerhaven; alternatively, plaintiff alleges that the said agreement was subject to the following implied conditions:(i) that the Luneplate would be a suitable tug for the purpose employed; (ii) that defendant would comply with the requirement of the certificate of the Classification Society, namely the towage of the St Padarn "not to commence if wind force 6 or more prevails"; and (iii) that defendant would C not commence the tow if weather conditions were adverse.

As to implied term (i), it is alleged that the Luneplate was not a suitable tug because its towing equipment was insufficient for the purpose employed and/or was defective; it was not sufficiently manoeuvrable so as to be able to effect a D re-connection in the event of the towline parting under adverse conditions; and it did not have aboard an anemometer or any other mechanical device which reliably measures wind speeds.

As to (ii) and (iii), it is alleged that defendant, in breach of these implied terms, commenced the tow at a time when the weather conditions were adverse and the prevailing wind was E force 6 or more. As a result of the breach of the aforesaid implied terms, taken either singly or together, it is averred that the towline parted on 31 October 1983 and a re-connection could not be effected, resulting in the St Padarn running aground and plaintiff suffering damages in the amount claimed.

In the further alternative it is said that the parting of the F towline and the grounding of the St Padarn was caused by the negligence of defendant and/or of defendant's servants, acting within the course and scope of their employment, in that: (a)they undertook the tow with a tug of insufficient power and/or towing capacity and/or manoeuvrability and/or having insufficient and/or defective equipment; (b) they undertook the tow in adverse weather conditions; (c) they failed to take G reasonable steps to prevent the parting of the towline when, by the exercise of reasonable care, they could have done so; and (d) they failed to take reasonable steps to prevent the grounding of the St Padarn when, by the exercise of reasonable care, they could have done so.

Defendant, in its answer to plaintiff's petition, admitted that H it failed to deliver the St Padarn at Bremerhaven but denied that such failure occurred in breach of its obligations under the said agreement.

It admitted the implied terms that the Luneplate would be a suitable tug for the purpose employed and that it would comply with the requirements of the Classification Society, but denied I the further implied term that defendant would not commence the tow if the weather conditions were adverse.

It admitted that the Luneplate did not have an anenometer or other wind speed measuring device, but denied that it was not a suitable tug as alleged.

It was also denied that the tow was commenced at a time when J the prevailing wind was force 6 or more.

Van Heerden J

While admitting that when the towline parted on 31 October 1983 A a re-connection could not be effected and that the St Padarn grounded, defendant denied that this was due to any breach of contract as alleged or was caused by its negligence, or that of its servants as alleged, or at all, which said negligence was in any event denied. Alternatively, defendant pleaded that B liability to plaintiff was excluded by clause 2 (b) of the general conditions of towage printed on the back of the said Unterweser towage agreement; or alternatively that according to German law no liability attached to defendant for breach of contract or delict uless defendant, its servants or agents were negligent, but excluding in terms of para 607 of the German Commercial Code damage caused by nautical negligence of the C master or crew of the Luneplate; and in the further alternative, pleaded that in terms of the provisions of s 261 (1) (b) of the Merchant Shipping Act 57 of 1951 defendant's liability in damages is limited to an amount of R9 051,86.

During the course of the trial Mr Comrie, who appeared for the defendant, indicated that the alternative defence based on the D nautical negligence of the master or crew of the Luneplate would not be proceeded with.

In its reply to defendant's answer plaintiff averred that clause 2 (b) of the general conditions of towage upon which defendant relied for its alternative defence was void and of no E effect by virtue of the provisions of s 9 of the German Standard Terms Act of 1977. It furthermore denied that defendant's liability in damages was limited by the provisions of s 261 (1) (b) of the Merchant Shipping Act 57 of 1951.

After evidence had been heard, three issues remained for decision by the Court:

(a)

whether defendant, through its servants, was in culpable F breach of the said agreement, or was negligent, and whether such fault caused the loss sustained by plaintiff;

(b)

the validity according to German law of clause 2 (b) of the general conditions of towage (it being common cause that, G if valid, it would defeat the whole of plaintiff's claim);

(c)

whether the loss of the tow of the St Padarn was caused without the actual fault and privity of defendant within the meaning of s 261 (1) (b) of the Merchant Shipping Act 57 of 1951.

The agreement between the parties must be construed in accordance with German law and the Court has had the benefit of the advice of two German lawyers, both experienced in the H practice of maritime law, as to what the law is and how it should be applied to the circumstances of this case. According to the evidence, the towage contract between the parties under German law is one of affreightment, which is a sub-species of a contract for work done, whereby defendant undertook in return for payment of the agreed remuneration to deliver the St Padarn I safely at Bremerhaven. The defendant was accordingly under a contractual obligation to deliver the St Padarn in Bremerhaven and, having failed to do so, it was in breach of that obligation. Before defendant would however be held liable in damages for breach of contract under German law, it has to be determined whether the defendant is to be blamed for the non-performance of the obligation. In other words, there must J be an

Van Heerden J

A element of fault (culpa) in the conduct of the defendant and in terms of the provisions of para 282 of the German Civil Code which contains a statutory presumption of blame against the promissor, the onus of proof rests upon defendant as promissor to show that it was not to blame for its inability to perform B the obligation. According to both the German Civil Code and the Commercial Code, the defendant is vicariously liable for the negligence of its servants and agents.

Paragraph 606 of the German Commercial Code provides as follows:

"The carrier is under an obligation to proceed with the care of a prudent carrier in the loading, stowage, forwarding, handling and unloading of the goods. He is liable for the damage which C is caused by the loss of, or damage to, the goods from the time of their receipt until they are delivered, unless such loss or damage is the result of circumstances which could not have been avoided by the care of a prudent carrier."

As far as the culpability or otherwise for the breach of contract by defendant is concerned, the evidence centred mostly around the 35 metre 10 inch perlon line which was used as a D stretcher in the towline of the St Padarn, and which actually parted in the first place; the 8 inch polypropylene line which was used for an emergency line and which in turn also snapped; the commencement of the voyage in breach of the Classification Society's certificate and the commencement of the voyage notwithstanding the forecast of adverse weather conditions. All E the witnesses who were called by both parties to give expert evidence on ropes agreed that the master of the Luneplate, Captain Ludke, should not have used the 8 inch polypropylene line for purpose of an emergency line and Mr Comrie was constrained, after all the evidence from both sides had been heard, to concede that the master of the Luneplate was at fault F in his use of the 8 inch polypropylene line as an emergency line and that it is probable that this contributed to the eventual loss of the tow. It was also conceded that the master of the tug was negligent in his reading of the certificate of the Classification Society as allowing him to commence the voyage in a wind of up to force 6, according to his evidence. It follows from this, in my view, that be was negligent in G commencing the towage when a wind of force 6 prevailed as established by the evidence.

In view of the above concessions by Mr Comrie, which I may add are borne out by the evidence, the defendant was clearly in culpable breach of the towage agreement, which is plaintiff's main claim and this makes it unnecessary for the Court to H consider and...